UK: Welcome Decision On The Effect Of Delays In Statutory Disciplinary Procedures

Last Updated: 2 October 2008
Article by James Davies

The Statutory Dismissal and Disciplinary Procedures (SDDPs) apply whenever an employer contemplates dismissing or taking relevant disciplinary action against an employee, irrespective of the employee's length of service. Both the 'standard' and 'modified' SDDPs require the employer to take a number of steps, including offering an appeal. There is a requirement under paragraph 12, Part 3 of Schedule 2 to the Employment Act (EA) 2002 that 'each step and action under the procedure must be taken without unreasonable delay'.

One of the most important changes to unfair dismissal law introduced by the EA 2002, which sets out the minimum procedures for dismissals and disciplinary action, was the insertion of s98A(1) into the Employment Rights Act (ERA) 1996. This new section provides that a dismissal shall be regarded as being automatically unfair, regardless of the merits of the decision to dismiss, if:

  • the SDDPs apply to the dismissal;
  • they have not been completed; and
  • the non-completion is wholly or mainly attributable to failure by the employer to comply with the SDDPs' requirements.

Most employers are now reasonably familiar with this concept and also with the fact that if they fail to complete one of the SDDPs the employment tribunal (ET) must, subject to a very narrow exception, increase any award of compensation it makes by 10% and may, if it considers it just and equitable in the circumstances, increase it by a further amount up to a maximum of 50%. Additionally, an employee whose dismissal is automatically unfair will receive a minimum basic award of four weeks' pay, irrespective of their length of service.


In Selvarajan v Wilmot & ors [2008] Ms Wilmot (W) was employed by Dr Selvarajan as a receptionist in a medical practice and was accused of claiming overtime that she had not worked. She was suspended, interviewed and ultimately dismissed for gross misconduct. W exercised her right of appeal under the SDDPs and was called to an appeal hearing some four months after the decision had been taken to dismiss her. The appeal upheld the employer's decision to dismiss her.

W then brought a number of claims at the ET against her employer, including one for automatic unfair dismissal under s98A(1) ERA 1996 on account of the employer's alleged failure to complete the SDDPs within a reasonable time, on the basis that the appeal hearing took place four months after the dismissal decision. The ET rejected the claim. W appealed the decision to the Employment Appeal Tribunal (EAT).

The EAT overturned the ET's decision and, following its own line of previous case law, ruled that a failure to take a step within a reasonable time (in the present case to hear an appeal) was a failure to complete the SDDPs under s98A(1) ERA 1996. The employer appealed to the Court of Appeal.


The Court found that the EAT's authorities were incorrectly decided and it overturned the EAT's decision in the present case. The Court noted that s98A(1) ERA 1996 required only three things (as set out above) to be established for a dismissal to be automatically unfair. The Court said that 'completion' must be given its ordinary meaning, ie to finish the process, and was not conditional on the general requirements of the SDDPs, including that each step must be taken without unreasonable delay. It noted that all the prescribed steps in the applicable SDDPs may be completed, even if there has been non-compliance with other procedural requirements, such as timetabling standards.


Although the Court's decision is clear and rectifies the previous line of cases, we would not recommend that an employer intentionally delays taking any of the steps required by the SDDPs; good industrial relations practice and the law still dictate otherwise. However, the Court's decision does mean that, provided the SDDPs are commenced timeously, a delay on the employer's part in taking any subsequent steps will not lead to a finding of automatically unfair dismissal.

Selvarajan v Wilmot & ors
[2008] EWCA Civ 862

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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